norml06 - Page 5
Return to Index
The Final Order discards the earlier formulation and ap- 1. The FOIA Claim
plies a new five-part test for determining whether a drug is in Section 552(a)(1) of FOIA preyides in relevant part:
"currently accepted medical use":
Each agency shall separately state and currently publish
(1) The drug's chemistry must be kno_ and reproducio in the Federal Register for the guidance of the public--
(2) there must be adequate safety studies;
(3) there must be adequate and well-controlled studies (D) ... statements of general'policy or interpretations
proving efficacy; of general applicability formulated and adopted by the
(4) the drug must be accepted by qualified experts; and agency ....
(5) the scientific evidence must be widely available°
57 Fed_ Reg_ at 10,506. None of these criteria is impossible
for a Schedule I drug to meet; in fact, petitioners concede in Except to the extent that a person has aetua[ and timely
their briefs that the new standard has corrected the flaws we notice of the terms thereog a pe_on ma?! not in an?/
identified in ACT_ ma_er ... be _dve_sel?˘ aj_ected by[ ] a matter _'eq_d'r_d
to be p_bZished in the Federal. Register and _et so
B. Petitioners' Other Arguments publishe&
Petitioners make two additional arguments: (1) They as- 5 U.S.C_ § 552(a)(1) (emphasis added). This provision re-
sort that they were deprived of the opportunity to conNrm quires agencies to set out in advance the legal standards that
their evidentiary submissions to the govern_tN legal standard will be applied so that "'actions can be guided, and strategies
because the previous Administrator bad flailed to publish the planned." Northe_ C_Z_f P_e_: Age_,ey v. Morton, 39g F.
eight-factor test on which he relied, as required by the Supp. 1t87, 1191 (DoD.C.), a:ff'd me,m,, sub. horn. Norther_
Freedom of Information Act ("FOIA'), 5 U.SoC. Cal_f P_,r. Age_;,_y v. II;_eppe, 539 Fo2d 243 (D,C, Cir. 197g}.
§ 552(a)(1)(D), until two weeks after the close of the evidence To establish a claim under the statute, however, the litigant
i_ the rescheduling proceeding; and (2)they claim that the must show that "he was adversely affiected by a lack of
Administrator's fulling was not the product of reasoned deei- publication or that he would have been able to pursue an
sionmaking because he was biased and ignored the record, alternative course of conduct" had the information been pub-
g_iile Altianee and NORML had apparently raised these lishe& Za_mraki_ v. Heckge_; 744 FYd 711, 714 (gth CL-.
issues in ACT, we did not expressly address them; nor did we 1984).
decide thrum by necessary implication because our ima_ted Pei_i_.itu_ers argue _.hai. i_he Adrninistraix_r vioia_d [.he s_.a_-
remand in ACT could have reflected a decision to postpone ute by _sing the eight-factor test to evaluate the evidence
consideration of these remaining arguments. Accordingly, we presented in the marijuana rescheduling petition. As the test
conclude that ACT did not establish the law ef the ease as te was not published until 17 days after the close of the eel-
these issues. See Bo_eheg .a Natg Urban League, 730 F.2d donee, l,hey contend that they were _'adverseiy afl_eted" by
799, 806 (D.C. Cir. 1984) ("[Olnly when an issue not expressly the Administrator's reliance on the test because they had no
addressed must, have been decided by 'neeessarh, implication' opportunity be tailor their evidence to meet its requirements.
will the [law of the case] doctrine be applied .... "). Accordingly, they ask us to remand the case to the Adminis-
Return to Index